The Health Care Quality Improvement Act of 1986 is, ostensibly,
meant to protect the public from incompetent physicians by allowing
those physicians on peer review committees to communicate in an open and
honest environment and thus weed out incompetent physicians, without the
specter of a retaliatory lawsuit by the reviewed physician.

However, the consequences of the Act have instead helped promote an
environment that protects those physicians on a peer review committee
when they distort the review process for their own gain, by maliciously
disciplining those physicians that may be in political or economic
competition.

TWELVE SIGNS OF SHAM PEER REVIEW
Sham peer review is a “corrective action” proceeding commenced by a
hospital medical staff against a physician to discipline the physician
motivated by other concerns than the quality of patient concerns – such
as hospital politics, competitive advantage or retaliation. There are
twelve telltale signs that individually and collectively may indicate a
situation of malicious peer review.

1. A doctor with a good history and reputation suddenly deemed to have
questionable performance indicators. Absent intervening external causes
such as recent substance abuse, or mental illness and unusual stress of
some kind, physicians usually do not suddenly turn south in terms of
professional judgment and performance.

2. The presence of gunny sacking issues. Gunny sacking is the dredging
up of old issues long since resolved to demonstrate present problems.
While history can be important if it demonstrates a consistent pattern
of misbehavior or uneven performance, old anecdotal grievances newly
retrieved reminds one of a spouse who raises old grievances in new
disagreements.

3. The existence of an “insider” clique of physicians who fiercely
maintain control of peer review and credentials positions and pass key
medical staff positions back and forth among themselves – while
excluding “outsiders.”

4. The lack of clear, definitive standards in medical staff bylaws for
“disruptive conduct,” denial or non-renewal of privileges or other
discipline. This permits each physician participating in the process to
bring his or her own “standards” no matter how subjective to the
process. See Kiester v. Humana Hospital Alaska, Inc., 843 P.2d 1219
(Alaska, 1992) (basic principles of due process of law require that
criteria established for granting or denying of hospital privileges to
physicians not be vague and ambiguous, and that as established, they be
applied objectively.)

5. Medical staff acting in excess of authority or violation of the
medical staff bylaws. Failure to follow the letter of the procedures set
forth in the investigative or hearing process frequently underscores a
separate agenda.

6. The existence of personal animus on the part of those participating
in the investigative or hearing process is a clear marker of retaliatory
intent.

7. The existence of a conflict of interest on the part of those
measuring or participating in the peer review proceedings can violate
fundamental conflict of interest principles – casting doubt on the
genuineness of espoused quality of care concerns.

8. Minor issues of quality of care magnified beyond a reasonable
expectation. Every professional makes mistakes and many of us are lucky
when they do not precipitate major problems for our patients and
clients. When a reviewing committee loses its perspective and elevates
otherwise minor infractions into major violations, judgment becomes
flawed and impaired.

9. The “piling on” of complaints. Rather than discrete, illuminating
case issues the medical staff appears to throw every thinkable
transgression, real and imagined, on the part of the physician against
the wall in the apparent hope that something will stick.

10. Disparate, discriminatory treatment. When a physician on the
“outside” is treated substantially different with respect to the
intensity of scrutiny than a physician on the “inside,” where it is
clear that the insiders are not demanding from themselves and other
insiders the same degree of practice performance as the physician under
review. This can sometimes be seen most dramatically in the differential
review treatment of two physicians involved in the same case.

11. In the failure to seek all relevant information concerning an issue
before a rush to judgment – key physicians or nursing staff members not
interviewed and the charts not carefully reviewed. The sample of cases
reviewed in order to reach a judgment on competence is unduly narrow.
See Brown v. Presbyterian Healthcare Services, 101 F.3d 1324 (10th Cir.
1996).

12. The existence of only a faint nod in the proceedings to a sincere
concern for the concern about quality or safety of patient care. The
lack of consistency in concern about quality of patient care can be a
tip-off of a separate agenda or ulterior motive in the proceedings.

While true good faith peer review is an important function of medical
staff physicians, the temptation to exploit its protections under the
Health Care Quality Improvement Act of 1996 can sometimes be
overwhelming, particularly in small, closed communities of providers.
Vigilance for sham peer review should be maintained to protect against
the erosion of basic constitutional rights.
Greg Piche'

Commentary

The Health Care Quality Improvement Act of 1986 was enacted to reduce
medical errors and protect the public.

The Congress finds the following:

(1)The increasing occurrence of medical malpractice and the
need to improve the quality of medical care have become
nationwide problems that warrant greater efforts than
those that can be undertaken by any individual State.

(2)There is a national need to restrict the ability of
incompetent physicians to move from State to State
without disclosure or discovery of the physician’s
previous damaging or incompetent performance.

(3)This nationwide problem can be remedied through
effective professional peer review.